BRB No. 01-0885 BLA
HOLLY P. VANCE
Claimant-Petitioner
v.
SEWELL
COAL COMPANY
Employer-Respondent
DIRECTOR, OFFICE OF
WORKERS'
COMPENSATION
PROGRAMS, UNITED
STATES
DEPARTMENT OF LABOR
Party-in-Interest
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DATE
ISSUED:08/09/2002
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DECISION and ORDER
Appeal of the Decision and Order -
Denying Benefits of Daniel L. Leland,
Administrative Law Judge, United States
Department of Labor.
Ray E. Ratliff, Jr., Charleston, West
Virginia, for claimant.
Mary Rich Maloy (Jackson & Kelly PLLC),
Charleston, West Virginia, for employer.
Before: DOLDER, Chief Administrative
Appeals Judge, SMITH and GABAUER,
Administrative Appeals Judges.
PER CURIAM:
Claimant appeals the Decision and
Order - Denying Benefits (2000-BLA-1102)
of Administrative Law Judge Daniel L.
Leland on a claim filed pursuant to the
provisions of Title IV of the Federal
Coal Mine Health and Safety Act of 1969,
as amended, 30 U.S.C. ?901 et seq. (the Act).[1] The administrative
law judge adjudicated the claim pursuant to 20 C.F.R. Part
718, based on claimant?s November 30, 1999 filing date.
Addressing the merits of entitlement, the administrative law
judge found the medical evidence of record sufficient to
establish the existence of a totally disabling respiratory or
pulmonary impairment pursuant to 20 C.F.R. ?718.204(b).
However, he found the medical evidence insufficient to
establish the existence of pneumoconiosis pursuant to 20
C.F.R. ?718.202(a) and also insufficient to establish that
claimant?s total respiratory disability was due to
pneumoconiosis pursuant 20 C.F.R. ?718.204(c).
Accordingly, the administrative law judge denied benefits.
On appeal, claimant contends that the administrative
law judge erred in failing to find the evidence of record
sufficient to establish the existence of pneumoconiosis.
Claimant also contends that the administrative law judge erred
in finding the evidence insufficient to establish that claimant?s
pneumoconiosis was a contributing cause of his total
respiratory disability. In response, employer urges affirmance
of the administrative law judge?s denial of benefits as
supported by substantial evidence. The Director, Office of
Workers? Compensation Programs, has filed a letter stating
that he will not file a brief on the merits of this case.[2]
The Board?s scope of review is defined by statute. The administrative law
judge?s Decision and Order must be affirmed if it is supported by substantial evidence, is
rational, and is in accordance with applicable law. 33 U.S.C. ?921(b)(3), as incorporated
into the Act by 30 U.S.C. ?932(a); O?Keeffe v. Smith, Hinchman & Grylls
Associates, Inc., 380 U.S. 359 (1965).
In order to establish entitlement to benefits under Part 718, claimant must establish
the existence of pneumoconiosis, that the pneumoconiosis arose out of coal mine
employment, and that the pneumoconiosis is totally disabling. 20 C.F.R. ??718.3,
718.202, 718.203, 718.204; Milburn Colliery Co. v. Hicks, 138 F.3d 524, 21
BLR 2-323 (4th Cir. 1998); Trent v. Director, OWCP, 11 BLR 1-26 (1987);
Perry v. Director, OWCP, 9 BLR 1-1 (1986)(en banc). Failure to prove
any one of these elements precludes entitlement. Id.
After consideration of the administrative law judge?s Decision and Order, the
issues raised on appeal and the relevant evidence of record, we conclude that substantial
evidence supports the administrative law judge?s finding that claimant failed to establish
the existence of pneumoconiosis pursuant to Section 718.202(a). The administrative law
judge, within a reasonable exercise of his discretion, found the x-ray evidence of record
insufficient to establish the existence of pneumoconiosis pursuant to Section
718.202(a)(1). Decision and Order at 3-4, 7-8. Initially, we reject claimant?s contention
that employer?s x-ray evidence is duplicative and cumulative and thus should be
excluded by the Board. Claimant?s Brief at 12. Subject to the constraints of 20 C.F.R.
?725.456, the administrative law judge is required to admit timely developed evidence.
While relevancy is the critical issue in the admission of evidence, court rulings favor the
admission of all evidence, even where relevancy is questionable, with reliance on the
trier-of-fact to determine the weight to be assigned to the evidence. Cochran v.
Consolidation Coal Co., 12 BLR 1-136 (1989); see also Pavesi v. Director,
OWCP, 758 F.2d 956, 7 BLR 2-184 (3d Cir. 1985); Martinez v. Clayton Coal
Co., 10 BLR 1-24 (1987). Inasmuch as claimant did not challenge the admissibility
of the x-ray evidence at the time of its submission, see Hearing Transcript at 23-24, the administrative law judge properly admitted all of the x-ray evidence into the
record. 20 C.F.R. ?725.456; Cochran, supra.
Weighing the x-ray evidence, the administrative law judge reasonably concluded
that the preponderance of the x-ray readings by physicians dually qualified as B readers
and Board-certified radiologists was negative for the existence of pneumoconiosis and,
therefore, found that claimant failed to establish the existence of pneumoconiosis
pursuant to Section 718.202(a)(1). Decision and Order at 7-8; Adkins v. Director,
OWCP, 958 F.2d 49, 16 BLR 2-61 (4th Cir. 1992); Worhach v. Director,
OWCP, 17 BLR 1-105 (1993); Melnick v. Consolidation Coal Co., 16 BLR
1-31 (1991)(en banc); Edmiston v. F & R Coal Co., 14 BLR 1-710
(1990); Roberts v. Bethlehem Mines Corp., 8 BLR 1-211 (1985).
We also affirm the administrative law judge?s finding that the medical opinion
evidence is insufficient to establish the existence of pneumoconiosis pursuant to Section
718.202(a)(4). The administrative law judge, within a reasonable exercise of his
discretion, accorded less probative weight to the opinion of Dr. Durham, in which the
physician diagnosed chronic obstructive pulmonary disease due in part to coal dust
exposure, because the physician did not adequately explain his conclusion. Decision and
Order at 8. As claimant contends, Dr. Durham provided a medical history, conducted a
physical examination of claimant and administered a chest x-ray, pulmonary function
study and a blood gas study. Director?s Exhibits 9-12. The administrative law judge
however reasonably found that Dr. Durham did not provide an adequate rationale for how
this underlying documentation supported his diagnosis. Decision and Order at 8;
Director?s Exhibits 9-12; see Sterling Smokeless Coal Co. v. Akers, 131 F.3d
438, 21 BLR 2-269 (4th Cir. 1997); Hicks, supra; Clark v. Karst-Robbins Coal
Co., 12 BLR 1-149 (1989)(en banc); Lucostic v. United States Steel
Corp., 8 BLR 1-46 (1985).
The administrative law judge also found that the opinion of Dr. Bellotte, that
claimant is suffering from coal workers? pneumoconiosis, is entitled to little weight
inasmuch as it was based on two positive x-ray interpretations, which have been reread as
negative by a preponderance of the other physicians, and claimant?s history of coal mine
employment. Decision and Order at 8. Contrary to claimant?s contention, the
administrative law judge did not mischaracterize Dr. Bellotte?s diagnosis of coal
workers? pneumoconiosis when he found that it was based on these two factors. The
record indicates that Dr. Bellotte stated that these were the factors that he relied upon and
had it not been for the positive x-ray reading, he would not have rendered a diagnosis of
coal workers? pneumoconiosis[1] Employer?s
Exhibit 20 at 21-22. Moreover, Dr. Bellotte stated that his x-ray interpretation of
pneumoconiosis was a very liberal interpretation of a positive x-ray as the changes seen
on the film were not typical findings of pneumoconiosis and therefore ?giving the miner
the benefit of the doubt, as he was exposed to coal mine dust for 20 years. I read this out
as being consistent with the ILO classification of 1/0 t/q.? Employer?s Exhibit 14.
Consequently, it was not irrational for the administrative law judge to accord less weight
to the diagnosis of pneumoconiosis by Dr. Bellotte. See Lafferty v. Cannelton
Industries, Inc., 12 BLR 1-190 (1989); see also Justice v. Island Creek
Coal Co., 11 BLR 1-91 (1988); Campbell v. Director, OWCP, 11 BLR 1-16
(1987).
Furthermore, we reject claimant?s contention that the administrative law judge
erred in failing to weigh the inconsistency in Dr. Fino?s medical opinion wherein the
physician initially diagnosed the existence of simple pneumoconiosis, but changed his
opinion in a later report. Claimant?s Brief at 10. The administrative law judge, in
weighing the medical opinion of Dr. Fino, stated that the physician modified his original
diagnosis of simple pneumoconiosis based on the review of additional x-ray evidence.
Decision and Order at 8; see Employer?s Exhibits 4, 15. Contrary to claimant?s
contention, the administrative law judge weighed the reason for Dr. Fino?s modification
of his original diagnosis, i.e., the consideration of additional evidence, and, therefore,
reasonably found this opinion to be credible. Id.; see Justice, supra;
Campbell, supra.
Lastly, we reject claimant?s contention that the qualifying blood gas study
evidence provides ?qualifying other objective evidence under 202(a)(4),? and, thus,
shows the existence of pneumoconiosis pursuant to Section 718.202(a)(4). Claimant?s
Brief at 5. Contrary to claimant?s contention, the results of a blood gas study, while
indicative of the presence or absence of a pulmonary or respiratory impairment, is not
dispositive on the issue of the cause of any such impairment under Section 718.202(a)
and does not establish the absence or presence of pneumoconiosis. See Morgan v.
Bethlehem Steel Corp., 7 BLR 1-226 (1984); see generally Trent, supra;
Piniansky v. 70-`Director, OWCP, 7 BLR 1-171 (1984).
Inasmuch as the administrative law judge considered all of the relevant evidence
and he reasonably determined that the medical opinions diagnosing chronic obstructive
pulmonary disease were insufficient to establish the existence of pneumoconiosis, and the
Board is not empowered to reweigh the evidence of record, as suggested by claimant, we
affirm his finding as supported by substantial evidence. See Anderson v. Valley Camp
of Utah, Inc., 12 BLR 1-111 (1989); Worley v. Blue Diamond Coal Co., 12
BLR 1-20 (1988); see also Lafferty, supra; Kuchwara v. Director,
OWCP, 7 BLR 1-167 (1984).
Since claimant has failed to establish the existence of pneumoconiosis pursuant to
Section 718.202(a), a requisite element of entitlement under Part 718, an award of
benefits is precluded. See Island Creek Coal Co. v. Compton, 211 F.3d 203, 22
BLR 2-162 (4th Cir. 2000); Hicks, supra; Trent, supra; Perry, supra.
Accordingly, the administrative law judge?s Decision and Order - Denying
Benefits is affirmed.
SO ORDERED.
________________________________
NANCY S. DOLDER, Chief
Administrative Appeals Judge
________________________________
ROY P. SMITH
Administrative Appeals Judge
________________________________
PETER A. GABAUER, Jr.
Administrative Appeals Judge
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Footnotes.
1) The Department of Labor has amended the regulations
implementing the Federal Coal Mine Health and Safety Act of 1969, as amended. These
regulations became effective on January 19, 2001, and are found at 20 C.F.R. Parts 718,
722, 725, and 726 (2001). All citations to the regulations, unless otherwise noted, refer to
the amended regulations.
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2) Inasmuch as the parties do not challenge the administrative law
judge's findings pursuant to 20 C.F.R. ??718.202(a)(2), (a)(3), 718.204(b), these findings
are affirmed. See Skrack v. Island Creek Coal Co., 6 BLR 1-710 (1983).
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1) In his April 9, 2001 deposition, Dr. Bellotte stated:
Q. In diagnosing simple pneumoconiosis in Mr. Vance, is your diagnosis premised on that positive
chest x-ray reading?
A. It?s premised on that positive chest x-ray reading and his twenty (20) years
of coal mine exposure.
Q. If you had [read] the x-ray as negative [for] pneumoconiosis would you
have diagnosed the coal workers? pneumoconiosis in this case?
A. Probably not.
Q. You say ?probably not?, would there have been any reason to
diagnose - - -
A. You can diagnose coal mine workers? pneumoconiosis in a patient without
x-ray changes; I wouldn?t have in this case, no.
Employer?s Exhibit 20 at 21-22.
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NOTE: This is an UNPUBLISHED BLA Document.
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